Peace or Justice? Amnesties and the International Criminal Court
Majzub, Diba, Melbourne Journal of International Law
[This paper examines whether amnesties granted by states to perpetrators of serious human rights abuses can preclude the possibility of prosecution before the newly established International Criminal Court. The author considers the general debate between supporters of the use of amnesty and those in favour of criminal prosecutions to address such wrongs. The author also examines the extent to which international law imposes a duty on states to prosecute those who commit human rights violations. With these discussions in mind, the author turns to the text of the Statute of the ICC to determine whether any form of amnesty could preclude prosecution by the ICC. The author concludes that if an amnesty exception exists at all in the Statute of the ICC, it is found in the section that confers discretion upon the ICC Prosecutor to commence an investigation. The author suggests a framework for the ICC Prosecutor to consider in evaluating whether to proceed with an investigation or prosecution of an individual who has received a national amnesty.]
CONTENTS I Introduction II The Debate over Transitional Justice A Arguments for Prosecution B Why Forego Prosecution? C Does International Law Require States to Prosecute? 1 Treaty Law 2 Custom D Truth Commissions and Amnesty: A Compromise between Peace and Justice? II The International Criminal Court A The Statute of the ICC B The Statute of the ICC and Amnesties C The Preamble and Article 1 D Jurisdiction E Article 17: Issues of Admissibility F Article 20: Ne bis in idem G Article 16: The Chapter VII Power of the UN Security Council H Article 53: Initiation of an Investigation 1 Did the State Have Legitimate Reasons for Granting the Amnesty? (a) Sierra Leone (b) East Timor (c) Conclusions from the Sierra Leonean and East Timorese Experiences 2 Was the Amnesty Granted in a Manner Consistent with International Law? 3 Did the Truth Commission Process Meet Minimum Standards of Justice? II Conclusions
Are peace and reconciliation compatible with the pursuit of justice? Consider the following scenario: a military regime prepares to relinquish power to a democratic government after years of perpetrating massive human fights abuses against its own people. The successor government recognises a social need to address the legacy of human fights violations committed by the former regime, but must contend with the fact that the main perpetrators still have substantial influence over the military. Furthermore, because the outgoing regime relied extensively on `disappearance' (1) to eliminate political opponents and critics, amassing the evidence necessary to conduct successful criminal prosecutions is difficult, if not impossible. Finally, and perhaps most importantly, the society, polarised and still recovering from the atrocities committed, could potentially plunge into a civil war in response to politically charged trials.
A society recovering from a legacy of human rights abuses perpetrated by an authoritarian regime and its opponents, or combatants in an internal conflict, is confronted with the dilemma of how best to come to terms with its horrific past. Simply ignoring the trauma suffered by the members of that society is not an option. As explained by Neil Kritz:
In responding to such trauma, groups and nations tend to function similarly to individuals. Societies shattered by the perpetration of atrocities need to adapt or design mechanisms to confront their demons, to reckon with these past abuses. Otherwise, for nations, as for individuals, the past will haunt and infect the present and future in unpredictable ways. …